Key Contact: Claire Knowles
Author: Conrad Hazlitt
This time last year many businesses were facing a gloomy winter ahead and the Acuity employment team were busy advising on all things redundancy related. How things have changed in 12 months with the recent ONS announcement that UK job vacancies hit a record high in September 2021. However, whilst it’s encouraging that businesses are looking to recruit, employers should remember to exercise care during all stages of the recruitment process. This starts (but by no means ends!) when advertising job vacancies.
What’s the risk?
All forms of job advertisement, including on online platforms, via recruiters, email and whether external or internal, are covered by the Equality Act 2010. This means that clumsy job adverts and/or application forms could run the risk of inviting discrimination claims from unsuccessful applicants.
Risks to avoid
Preparing Job Adverts
- Flexible Working – Inflexible working arrangements, such as if a role is advertised as full time only, could be challenged for being discriminatory by those who, for example, need to work part time due to childcare commitments. Where employers are open to a role being done flexibly, say part time or with hybrid home-working arrangements, they should explicitly state this in the job advert. Where employers are not open to this, they should satisfy themselves that they could explain why if ever challenged.
- Job Titles and Candidate Specifications – Job titles and ‘ideal candidate’ specifications as advertised should not risk accusations of a predetermined bias towards particular protected groups. Common pitfalls include:
- Using old fashioned job titles in adverts which indicate predetermined bias, “handyman” or “office boy” for example suggest an intention to recruit males.
- Rigidly listing qualifications that are not available to everyone, GCSEs for example were not available to past generations and are not available to those who were educated abroad. Where desired/required qualifications are listed, it should be stated on the job advert that equivalent qualifications are also acceptable.
- Using adjectives that could indicate bias. Describing ideal applicants as “high-energy” for example, could be seen as discriminatory against older persons, whilst “active” may put off disabled applicants who are perhaps less mobile. Using less discriminatory adjectives, such as “enthusiastic”, will reduce risks. That said, we generally advise against using vague and subjective adjectives to describe ‘ideal candidates’ where at all possible. Instead, employers should focus on concrete factors such as the key skills that are necessary for success in the role.
- Specifying that candidates must have the right to work in the UK in order simply to apply. This requirement risks being discriminatory on the grounds of race. Discussions around right to work should be left until much later in the recruitment process, and ideally not until conditional job offers have been made.
- Failing to tailor the job specification to the vacancy. Employers should give careful consideration to the ‘ideal candidate’ specification to ensure that any advertised selection preference can be justified in light of the specific job role. For example, is it still necessary for applicants to have a U.K driving license (something which may potentially prejudice disabled applicants) if your client meetings are now all being held remotely?
Advertising the Job Vacancy
- Absent Colleagues – When advertising a job vacancy or promotion opportunity internally, employers should remember to provide details of the opportunity to colleagues who are on long term absence, such as those on maternity leave or long-term sick leave. Failure to do so could harm relations with those employees and even invite discrimination claims.
- Placing Job Adverts – Employers should consider where advertisements are placed with a view to ensuring that a diverse and wide range of potential candidates are reached. For example, advertising solely via online platforms, such and LinkedIn, may prejudice older workers.
- ‘Closed Recruiting’ Practices – Whilst there is no specific legal requirement for employers to advertise externally, employers should be cautious about repeatedly only advertising vacancies internally. The same is true for repeatedly recruiting based on recommendations made by existing staff. If a workforce disproportionately comprises people of a particular group, repeated ‘closed recruiting’ practices can lead to discriminatory consequences as members of other groups may be given less opportunities. ‘Wide’ advertising will enable employers to select staff from a broader and more diverse pool, thereby reducing potential allegations of discrimination.
- Reasonable Adjustments – Employers are under a duty to make reasonable adjustments for disabled applicants during the recruitment process. Since this duty is not anticipatory, employers do no need to pre-emptively make reasonable adjustments, for example publishing application forms in various accessible formats. However, employers should be able to respond quickly to requests for reasonable adjustments so that disabled candidates can have their applications considered at the same time as other applicants. We suggest that application forms and online assessments specify that they are available in other accessible formats upon request.
- Requesting Candidates’ Personal Information –Minimal personal information should be requested from candidates when inviting applications. Information such as candidates’ ages and sex should not ordinarily be requested on an application form. Where candidates’ personal information (such as names) is requested, large employers may want to consider arranging for this to be detachable from the rest of the application form. This information can then be withheld from the employer’s short-listing panel and thus guard against speculative discrimination claims from unsuccessful candidates. Equal opportunities monitoring forms should always be separated out from job application forms.
How Acuity can help
Employers can reduce their exposure to Employment Tribunal claims through having in place and implementing an effective equal opportunities’ recruitment policy. We are experienced in drafting tailored recruitment policies that both protect our clients and are unique to their individual needs.
In limited circumstances, employers may legally favour certain job applicants over others because they hold, or do not hold, particular protected characteristics. It is also possible for job adverts to legally advertise roles as being for, or not for, candidates with specific protected characteristics. Where this approach is justified, we are always on hand to advise businesses on how to mitigate the associated risks.
Talk to a member of our Employment Team today.